Energetech v Sides Engineering & Anor [2005] NSWSC 801

Energetech v Sides Engineering & Anor [2005] NSWSC 801

Even if the adjudicator erred in finding that practical completion, the relevant contractual milestone and reference date, had been achieved, that error did not render the determination void. The payment claim purported to be made under the Act by a person claiming entitlement to a progress payment, and the question whether the milestone had been achieved was a matter of fact and law for the adjudicator to determine in good faith. Compliance with s 13(4) was not a basic and essential requirement in the Brodyn sense. Energetech was therefore not entitled to declaratory or injunctive relief, and the summons was dismissed with costs.

Jurisdiction
Australia
Judgment Date
05 August 2005
Procedural Posture
Supreme Court Equity Division Technology & Construction List Summons Seeking Declaratory and Injunctive Relief Concerning a Security of Payment Adjudication Determination / Preliminary Point of Law Determined Pursuant to Pt 31 R 2
Outcome
Summons dismissed with costs.
Legal Topics
['payment Claim' 'reference Date' 'practical Completion Milestone' 'validity of Adjudication Determination' 'basic and Essential Requirements Under Brodyn' 'building and Construction Industry Security of Payment Act 1999 (nsw) S 13(4)']
['building and Construction' 'equity' 'security of Payment'] ['payment Claim' 'reference Date' 'practical Completion Milestone' 'validity of Adjudication Determination' 'basic and Essential Requirements Under Brodyn' 'building and Construction Industry Security of Payment Act 1999 (nsw) S 13(4)']

Case Brief

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Procedural Posture

Supreme Court Equity Division Technology & Construction List Summons Seeking Declaratory and Injunctive Relief Concerning a Security of Payment Adjudication Determination / Preliminary Point of Law Determined Pursuant to Pt 31 R 2

Legal Issues

  1. 1 ['Whether alleged non-compliance with s 13(4) of the Building and Construction Industry Security of Payment Act 1999 (NSW) meant there was no valid service of a payment claim for the purposes of s 13(1).' "Whether an adjudicator's possible error in deciding that practical completion had been achieved rendered the adjudication determination void." 'Whether compliance with s 13(4) is a basic and essential requirement for a valid adjudication determination under Brodyn.']

Ratio Decidendi

Even if the adjudicator erred in finding that practical completion, the relevant contractual milestone and reference date, had been achieved, that error did not render the determination void. The payment claim purported to be made under the Act by a person claiming entitlement to a progress payment, and the question whether the milestone had been achieved was a matter of fact and law for the adjudicator to determine in good faith. Compliance with s 13(4) was not a basic and essential requirement in the Brodyn sense. Energetech was therefore not entitled to declaratory or injunctive relief, and the summons was dismissed with costs.

Court Disposition

Summons dismissed with costs.

Orders

  • ['The summons be dismissed with costs.' 'The exhibits be retained for 28 days and thereafter held or disposed of in accordance with the Rules.' 'The first defendant be relieved of the undertaking to the Court given by its solicitor Mr Doyle.']